dissenting. Because I believe stice, should have been permitted to testify as an expert witness on the issue of whether the term, “mental illness,” as it is used in the policy is ambiguous as it applies to Mr. Elam’s bipolar affective disorder, I must respectfully dissent.
This appeal stems from an earlier decision entered by this court. Elam v. First Unum Life Ins. Co., 346 Ark. 291, 57 S.W.3d 165 (2001). In the earlier appeal, we were asked to determine whether the trial court properly granted First Unum’s motion for summary judgment. Id. The trial court granted First Unum’s motion for summary judgment because it concluded that the definition of “mental illness” provided in First Unum’s disability policy was unambiguous. On appeal, following the entry of summary judgment, we held:
We therefore reverse the trial court’s judgment and remand for the jury to resolve whether, based on the disputed extrinsic evidence offered by the parties, the term “mental illness,” as it is used and defined in the policy, is ambiguous as it applies to Elam’s diagnosis of bipolar affective disorder.
Id.
Based on the foregoing language, I believe that we delegated to the jury the responsibility of making a determination that is usually performed by a trial judge. Specifically, we directed the jury to consider a mixed question of law and fact to determine on the basis of extrinsic evidence whether the term, “mental illness,” as it was used in First Unum’s policy, was ambiguous.
At trial, the judge admitted the testimony of Dr. Charles Bowden and Susan Griffin as extrinsic evidence on the issue of whether the term, “mental illness,” was ambiguous. Their testimony was introduced by First Unum over Mr. Elam’s objection. Dr. Bowden’s testimony was given from a medical professional’s point of view. Ms. Griffin, an employee of First Unum, discussed the issue from what she characterized as a “regular person[’s]” point of view. Although the testimony from Dr. Bowden and Ms. Griffin was admitted as extrinsic evidence to assist the jury in determining whether the term, “mental illness,” was ambiguous, the trial court ruled that similar extrinsic evidence offered by Mr. Elam through the testimony of Gail Matthews was inadmissible.
Mr. Elam intended to use the testimony of Gail Matthews, a local attorney, as extrinsic evidence to establish that the policy language was ambiguous. According to Mr. Matthews’s proffered deposition testimony, he was an expert “in the area of insurance coverages and their meanings.” He further explained that he was an “expert in the interpretation of insurance policies.” The admission of Mr. Matthews’s testimony would have been in accordance with Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001), in which the jury was permitted to consider the testimony of Sidney McMath, an attorney, who was qualified as an expert in handling insurance claims.
Mr. Matthews was not permitted to testify. If he had been permitted to testify at trial, Mr. Matthews intended to testify regarding: (1) his experience as an attorney litigating insurance cases; (2) his understanding of what constitutes an ambiguity; (3) his opinion as to whether there was an ambiguity in the insurance policy; and (4) cases from other jurisdictions in which the disputed policy language was found to be ambiguous.
After reviewing Mr. Matthews’s proffered testimony, I believe that the trial court abused its discretion by excluding the evidence while allowing First Unum’s witnesses to present testimony. We remanded this case for ajury determination of whether the term, “mental illness,” was ambiguous. As previously noted, this determination is a mixed question and fact and law. In our opinion, we noted that in making this determination the jury would have to consider extrinsic evidence. Mr. Matthews’s testimony would have assisted the jury in its determination of whether the term, “mental illness,” as it is used in the policy, is ambiguous. Specifically, I believe that Mr. Matthews’s expert testimony would have greatly benefitted the jury in its determination of whether the policy language was legally ambiguous. Because Mr. Matthews’s proffered testimony went to the threshold issue in the case, I conclude that Mr. Elam was prejudiced by the exclusion of this* testimony from his trial.
I respectfully dissent.